The first steps for overseas counsel when an employee is arrested on business in the U.S.

This article is the second in a three-part series on what overseas company counsel should do when an employee is arrested on a minor criminal charge while on business in the United States. Part I addressed the company’s need to understand the scope of the problem. Part III will discuss approaches to softening the possible impact of the event upon the employee’s ability to travel to the United States in the future.

A company’s situation with respect to an unattended criminal case, investigation, or other matter concerning either the company or an employee rarely gets better with age. After acting promptly and surely to identify and address the problem, the next step is aiding the employee in working out a positive resolution.

Step 1: Confer with trusted outside counsel in the United States to help identify qualified U.S. counsel.

The company’s regular outside counsel in the United States will help the company determine the precise nature and possible penalties (felony or misdemeanor) of the charges lodged against the employee. Knowing the nature and penalties for the offense will allow the company and the employee to assess the seriousness of the matter, and to retain the most qualified counsel available.

Regular U.S. outside counsel is usually the best place to begin when seeking to identify qualified U.S. counsel. The company, in consultation with the employee, should select a good lawyer quickly. The jurisdiction in a minor criminal matter might well be a small state or county branch court. The company’s regular U.S. counsel may then help identify an attorney most suited to representing the employee in such a forum, whether from the company’s trusted U.S. firm or from a smaller law firm or office. Drunk-driving matters, for example, often involve very specialized issues in which the company and the employee will want an attorney who has experience with those particular issues.

Step 2: Determine the employee’s immediate obligations in the matter, and prevent issuance of an “arrest warrant.”

A court date may be upcoming, often within 30 days of the employee’s arrest in the United States. Particularly if the employee returned to the home country, a strategy must be developed quickly to plan for a resolution of the case and to prevent the U.S. judge from issuing a warrant for the employee’s arrest due to non-appearance in the U.S. court. In virtually all minor cases, the company will advise the employee not to ignore the U.S. matter, because not appearing in the court, or otherwise ignoring the matter, will only result in the employee being unable to travel to the United States on business, or for personal reasons. A warrant, in most cases, will result in the employee’s detainment or arrest upon re-entry into the United States. Ignoring a U.S. criminal case may also lead to the potential for the employee to be arrested on warrant upon re-entry.

These circumstances obviously are not acceptable to most companies and employees. Usually, even if the employee has returned to a home country and is outside the United States at the time of the first court appearance, qualified counsel may be able to persuade the judge not to issue an arrest warrant, on the ground that the employee has now retained counsel and will appear at the next scheduled court date. If the attorney is able to tell the judge that the employee wishes to resolve the matter promptly, the judge will be less inclined to issue a warrant that would only complicate the employee’s effort to return to the United States for the resolution.

Step 3: Support the employee’s efforts to resolve the matter through U.S. counsel.

The company’s support helps ensure that the employee receives adequate and quality representation and may include payment of U.S. counsel’s fees. The company should permit the employee to travel to the United States as necessary to appear in court or to resolve the matter. While the resolution of the matter — such as a decision to plead guilty, or to admit to the accusatory facts as part of a resolution short of a formal criminal conviction — will normally be a matter for consideration by the employee and U.S. counsel, most employees will readily consent to the company providing counsel with its input about what the resolution should be.

Step 4: Understand the available resolutions or “dispositions” of the matter.

Depending on the nature of the charge, a variety of different dispositions will be available. In the United States, the employee is always able to insist on a trial. The employee may maintain his or her innocence in the matter. A trial, however, may be costly and unpredictable. The uncertainty associated with a trial often leads criminal defendants in the United States to seek an agreed disposition with the prosecutors, especially if the disposition is favorable. The most favorable outcome is always one that does not involve a formal criminal conviction. The possible dispositions could include, depending on the jurisdiction:

Conviction on the charged offense. Whether achieved after a trial or through a plea agreement, this is the least desirable outcome. The conviction (which is a formal judgment of guilt) establishes a permanent criminal record for the employee and a possible period of incarceration, in the most serious cases.

Probation. Employees with no previous criminal record in the United States may be eligible for this more lenient result in which the employee receives a criminal conviction but no jail time. The employee must comply with various conditions of probation for a specified time.

Court supervision. Whether described as “court supervision” or by any other name, this disposition is highly favorable because it does not result in a criminal conviction and therefore no criminal “record.” The court simply imposes a period of “supervision” (usually one year in most minor offenses) in which the employee must break no laws and must comply with any applicable conditions. A period of supervision might also include a small amount of community service, which involves volunteer work at a community charitable facility such as a food pantry or shelter.

Dismissal. This is perhaps the most favorable result of all, but it is also the most difficult to obtain, as it is entirely within the individual discretion of the prosecutor.

Qualified U.S. counsel will help the employee navigate the U.S. system to obtain the best possible disposition, considering the individual nature of the case. All the while, counsel, the employee and the company will need to consider the possible immigration consequences — the subject of the third and final part of this series.